Research › Search › Judgment

Madras High Court · body

2021 DIGILAW 499 (MAD)

S. M. Irudayam (died) v. Gnaniah (died)

2021-02-12

N.SATHISH KUMAR

body2021
JUDGMENT : Prayer: This Second Appeal is filed under Section 100 of the Civil Procedure Code, against the judgment and decree dated 05.10.1999 made in A.S.No.20 of 1997 on the file of the Principal Subordinate Judge, Tirunelveli reversing the judgment and decree dated 24.09.1996 made in O.S.No.611 of 1990 on the file of the District Munsif Court, Valliyoor. 1. Aggrieved over the judgment of the First Appellate Court reversing the decree and judgment of the trial Court dismissing the suit for declaration and recovery of possession in O.S.611 of 1990, the present second appeal is filed. 2. For the sake of convenience, the parties are referred to herein, as per their rank before the Trial Court. 3. The brief facts, leading to the filing of this Appeal Suit, are as follows: The first schedule of the suit property and other properties originally belonged to one Maria Sebastian Nadar and Amirthiah Nadar. The said Maria Sebastian Nadar has two sons namely, Jospeh Nadar/vendor of the plaintiff and S.M.Irudayam/the first defendant herein. The second schedule property is the northern half of the first schedule property. Maria Sebastian Nadar and Amirthiah Nadar effected partition on 06.01.1939. Accordingly, the first schedule property and other properties were given to Maria Sebastian Nadar and he was in peaceful possession and enjoyment of the property. The said Maria Sebastian Nadar died about 40 years back leaving behind his sons, namely Jospeh Nadar and S.M.Irudayam as his legal heirs. (ii) Joseph Nadar and the first defendant effected oral partition on 25.04.1951 in respect of the properties of their father. As a result, Joseph Nadar/vendor of the plaintiff was allotted with the first schedule property. Ever since the date of oral partition, he was in exclusive possession and enjoyment of the first schedule property. Several mortgage deeds have been executed by him and then the same was redeemed by him. On 19.03.1957, the said Jospeh Nadar sold the first schedule property to one Antony Savarimuthu Nadar by a registered sale deed for a valuable consideration. After the purchase of the property on 13.07.1966 from Antony Savarimuthu, on 24.08.1966, the said Joseph Nadar sold the property to one Aruldason, who is none other than the brother of the plaintiff. Again he has repurchased the same by a registered sale deed dated 11.12.1972 and on the very same day, he has executed a mortgage deed in favour of one Nambi Nadar. Again he has repurchased the same by a registered sale deed dated 11.12.1972 and on the very same day, he has executed a mortgage deed in favour of one Nambi Nadar. Thereafter, the said Joseph Nadar executed a registered Othi deed in favour of Nambi Nadar on 30.08.1977 in respect of the first schedule property for a period of three years. (iii) While the said Othi deed was in force, the said Joseph Nadar has executed a registered sale deed in favour of the plaintiff on 18.10.1977 for a valid consideration of Rs.1,000/-. In the sale deed also, it has been mentioned that the mortgage and Othi deeds executed in favour of Nambi Nadar has been discharged by the plaintiff. Accordingly, the plaintiff has become an absolute owner of the property and he is possession and enjoyment of the property from the date of purchase from Joseph Nadar. Electricity connection was obtained by the then owner Aruldason, brother of the plaintiff. (iv) The first defendant is an influential person and in order to grab the property, the defendants and their henchmen attempted to trespass into the property on 08.04.1990. Therefore, the plaintiff has filed a suit in O.S.No.278 of 1990 seeking permanent injunction and obtained an interim order. In the above suit, the first defendant took a stand that he is the owner of the northern half portion of the first schedule property, while admitting that the southern half portion of the first schedule property belonged to the plaintiff. Taking advantage of the soft nature of the plaintiff, the first defendant entered into the property in a forcible manner and arranged the second and third defendants to be in possession and enjoyment of the II schedule property in the month of May, 1990 under the pretext of tenants. Now the second and third defendants attempted to create a tenancy agreement with the first defendant. Hence, the plaintiff had withdrawn the suit for bare injunction filed with liberty to file a fresh suit and then filed the present suit for declaration and recovery of possession. 4. It is the case of the first defendant that the suit property originally belonged to Maria Sebastian Nadar and Amirthiah Nadar. In a partition took place between them, the first schedule of the property was allotted to Maria Sebastian Nadar. 4. It is the case of the first defendant that the suit property originally belonged to Maria Sebastian Nadar and Amirthiah Nadar. In a partition took place between them, the first schedule of the property was allotted to Maria Sebastian Nadar. There is a custom prevailing in the community that in a partition in the family northern portion of the property will go to the younger brother and southern portion of the property will go to the elder brother. Accordingly, after the death of Maria Sebastian Nadar, the property was partitioned between the first defendant and Joseph Nadar/vendor of the plaintiff as they are the legal heirs of Maria Sebastian Nadar and the northern portion of 1.1/8 cents out of 2 1/4 cents, which is the first schedule property was allotted to the first defendant as he is the younger. In survey No.1976/B3, the father of the first defendant had got 7 cents and after the demise of his father, the first defendant got norther 3 1/2 cents and sold to one Jeyaseeli. Similarly, the brother of the first defendant was allotted to southern 3 1/2 cents and he sold the same to one Muslim. The said sales clearly prove the prevailing custom in the community mentioned above. Patta also stands in the name of the first defendant and Jospeh Nadar. It is a joint patta. Hence, it is the contention of the first defendant that the father of the first defendant constructed a tiled roof shed facing east with two doors in the middle of the schedule property. The first defendant is enjoying the northern portion and the brother of the first defendant was enjoying the southern portion. The second defendant was inducted as tenant of the northern portion of the schedule property by the first defendant. In the southern 1 1/8 cents, the brother of the first defendant inducted one Aruldasan as tenant. While he was in possession, he obtained electricity connection. He submitted that the property has not been divided and there is no oral partition as alleged. Hence, prayed for dismissal of the suit. 5. Based on the pleadings, the following issues were framed by the trial Court: (1) Whether the plaintiff is entitled to the relief of declaration in respect of second schedule property? (2) Whether the plaintiff is entitled to the relief of possession in respect of the second schedule property? Hence, prayed for dismissal of the suit. 5. Based on the pleadings, the following issues were framed by the trial Court: (1) Whether the plaintiff is entitled to the relief of declaration in respect of second schedule property? (2) Whether the plaintiff is entitled to the relief of possession in respect of the second schedule property? (3) Whether the first defendant is the co-shares of the suit property? (4) Whether the first defendant is entitled for half share in the suit schedule property? (5) Whether the plaintiff has locus to file the suit? (6) Whether the second plaintiff is the tenant in the suit property? (7) Whether first schedule property was allotted to Joseph Nadar? (8) Whether the property has been properly assessed? (9) To what other reliefs? 6. Based on the above pleadings, on the side of the plaintiff P.Ws.1 and 2 were examined and Exs.A1 to 21 were marked and on the side of the defendants D.W.1 and D.W.2 were examined and Exs.B1 to B11 were marked. 7. On the basis of the evidence and materials, the trial Court has come to the conclusion that, the alleged trespass made by the defendants is not established by the plaintiff; the patta is the joint patta and the oral partition allotting entire property to the plaintiff's vendor has not been proved and hence, dismissed the suit. On an appeal, the First Appellate Court allowed the appeal and granted decree in favour of the plaintiff. As against the same, the present second appeal has been filed. 8. While admitting the second appeal, the following substantial questions of law have been framed: (1) Is not the judgment of the lower appellate Court vitiated by not following the settled position of law that the plaintiff must succeed or rail on his own case and not on the weakness or lacuna in the case of defendants? (2) Is not the present suit for recovery of possession barred under Order 23 Rule 1(4) CPC in view of the withdrawal of earlier suit O.S.No.278/90 (filed for bare injunction) without seeking any liberty to file the fresh suit on the same cause of action? (2) Is not the present suit for recovery of possession barred under Order 23 Rule 1(4) CPC in view of the withdrawal of earlier suit O.S.No.278/90 (filed for bare injunction) without seeking any liberty to file the fresh suit on the same cause of action? (3) When there is no direct evidence of prove the alleged oral partition of the year 1951, is not the learned Principal Subordinate Judge wrong in accepting the case of the oral partition as pleaded by plaintiff on the basis of documents Ex.A-1 to A-8 which are neither proved in accordance with law nor binding on first defendant who is not a party to any of the documents especially when there are admitted documents like Ex.B3 and Ex.B11 which disprove the 1951 oral partition? (4) Is it permissible to presume an oral partition which is unequal and unnatural without any explanation or justification? 9. The learned counsel appearing for the appellants mainly contented that the plaintiff is a stranger to the family. He has only pleaded oral partition. Hence, the entire burden lies on the plaintiff to prove the oral partition and allotment of property to the vendor of the plaintiff pleaded by him. He would contend that the First Appellate Court, merely considering the documents under Exs.A1, A2, A4 and A5, mortgage deeds executed by one of the co-owner, has come to the conclusion that there is oral partition and such presumption is not on proper appreciation of evidence. It is the contention that though some of the documents styled as reconveyance deed executed by Joseph Nadar were provided, it makes it very clear that those documents were only as a result of loan transaction. Therefore, merely on the basis of the said documents, the oral partition as alleged by a stranger to the family cannot be presumed. 10. It is their further contention that as per the custom prevailing in the community southern portion will always be allotted to the elder brother and northern portion will be allotted to the younger brother. Partition in respect of other properties under Exs.B3 and B11, proves the fact that the first defendant being younger brother was allotted to northern portion, which was dealt by him under Ex.B3 and southern portion was sold by the elder brother of the first defendant under Ex.B11. The first defendant is in possession of the northern side from the very inception. The first defendant is in possession of the northern side from the very inception. There is no evidence available on record to show that these properties were orally partitioned in the year 1951. Hence, it is the contention that one of the co-owner dealt the property and executed Othi deeds for loan transaction, that itself cannot be a ground to presume oral partition. Hence, it is the contention that the oral partition has not been established. Under Section 47 of the Transfer of Property Act, all the co-owner has equal share. There is no evidence available on record to show that the entire first schedule property was allotted to the brother of the first defendant. The First Appellate Court ignored the joint patta stand in the name of the first defendant and his brother. Exs.B9 and B10 also indicate that the other defendants are in possession of the property and these documents were also ignored by the First Appellate Court. 11. The entire burden was shifted on the first defendant by the First Appellate Court without considering the evidence in proper manner. As long as the oral partition has not been established, the first defendant being a co-owner, is also entitled to a share and the suit for declaration is not maintainable. At the most, the plaintiff is entitled only to file a suit of partition and not for recovery of possession of the northern portion. The claim of recovery of possession of the northern side itself makes it very clear that the first defendant is one of the co-owner as per the custom prevailing in the community. This fact is also evidenced in Exs.B3 and B11. It is the further contention that though it is stated that previous suit was filed for bare injunction and was withdrawn with liberty to file a fresh suit, no documents have been filed with regard to the same. Even the plaint in the said suit has not been filed by the plaintiff. Suppression of earlier pleadings is also not explained by the plaintiff. It is the further contention that the finding of the First Appellate Court that since the document writer is from the same village, the defendants would have known the execution of the documents, namely mortgage deeds, is also without any basis. Hence, prayed for allowing the appeal. 12. Suppression of earlier pleadings is also not explained by the plaintiff. It is the further contention that the finding of the First Appellate Court that since the document writer is from the same village, the defendants would have known the execution of the documents, namely mortgage deeds, is also without any basis. Hence, prayed for allowing the appeal. 12. It is the contention of the learned counsel for the respondents/plaintiffs that the plaintiff has purchased the property under Ex.A8 from Joseph Nadar. There was a oral partition between the first defendant and his brother in the year 1951. Exs.A1 to A5 make it very clear that the first schedule property was successfully dealt by the Joseph Nadar from the year 1955 to 1977 and in fact he has executed the sale deed in several occasions and then repurchased property. These facts clearly established the fact that the plaintiff's predecessor in title was in exclusive possession and enjoyment of the property as per the oral partition. 13. It is their further contention that Exs.B3 and B11 also clearly indicate that two brothers have dealt with the properties independently. The above facts also clearly indicate that there was an oral partition in respect of the property. Merely, because the patta stands in the name of the plaintiff and the first defendant, it cannot presumed that there was no oral partition. Exs.A6 to A9 clearly show that the property was exclusively dealt by the vendor of the plaintiff and under Ex.A8, transfer of name also took place in the name of the plaintiff. More so, all these documents are more than 30 years old and presumption under Section 90 of the Indian Evidence Act shall be drawn as to the genuineness of the document. At no point of time, the defendants registered their protest against these documents nor challenged the same. The document writer of all the documents also came from the same village. Hence, it is the contention that all these facts have been taken note of by the First Appellate Court and granted decree in favour of the plaintiff. The first defendant was aware of these documents. The document writer of all the documents also came from the same village. Hence, it is the contention that all these facts have been taken note of by the First Appellate Court and granted decree in favour of the plaintiff. The first defendant was aware of these documents. The plaintiff also discharged the existing mortgage deed, whereas the first defendant has not proved his case that the southern half of the first schedule property was allotted to Joseph Nadar and the northern portion of the first schedule property was allotted to the first defendant. Exs.B4, B5 and B6 have also strengthen the case of the plaintiff. Hence, prayed for dismissal of the appeal. 14. In support of his contentions, he has relied upon the following judgment: (1) Rangaswami Vs. T.V. Krishnan and others [ 2010 (5) CTC 874 ]. 15. The suit has been laid for declaration and recovery of possession. It is the case of the plaintiff that on the basis of the sale deed under Ex.A8, dated 18.10.1977 in his favour, he took possession of the property. It is admitted by both sides that the suit property originally owned by Maria Sebastian Nadar and Amirthiah Nadar and the same was partitioned between them. Maria Sebastian Nadar was allotted with the suit schedule property and other properties. The said Maria Sebastian Nadar has two sons namely, Jospeh Nadar/ vendor of the plaintiff and S.M.Irudayam/first defendant. It is the specific case of the plaintiff that on 25.04.1951, there was an oral partition between two brothers. In the said oral partition, the suit 'A' Schedule property was allotted to Joseph Nadar and he is in possession and enjoyment of the same and he has dealt the properties from the year 1951 till 1977. Various mortgage deeds and reconveyance deeds have also been executed by the said Joseph Nadar. The plaintiff purchased the property from Jospeh Nadar under Ex.A8 along with the existing mortgage deed and he has also discharged the same. Ever since the date of purchase, the plaintiff is in possession of the property, whereas the defendants tried to interfere with the possession in the month of May, 1990. Hence, the plaintiff filed a suit for bare injunction in O.S.No. 278 of 1990 and despite interim order obtained in the said suit, the defendants trespassed into the suit property. Ever since the date of purchase, the plaintiff is in possession of the property, whereas the defendants tried to interfere with the possession in the month of May, 1990. Hence, the plaintiff filed a suit for bare injunction in O.S.No. 278 of 1990 and despite interim order obtained in the said suit, the defendants trespassed into the suit property. Thereby, the plaintiff had withdrawn the earlier suit with liberty to file a fresh suit and filed the present suit. 16. The oral partition pleaded by the plaintiff in the year 1951 was denied by the defendants. Similarly, the first defendant has also taken a stand that as per the custom prevailing in the community, northern portion of the property would go to the younger brother and southern portion would go to the elder brother and accordingly, the northern portion was allotted to the first defendant and he was in possession and enjoyment of the same and southern portion was allotted to his brother Joseph Nadar. To prove the same, he has relied on Exs.B3 and B4, sale deeds in respect of other properties, which clearly indicate that the southern portion of the property was dealt by the plaintiff's vendor and northern portion of the property was dealt by the first defendant. The plaintiff has not filed any documents or evidence to show that there was an oral partition in respect of the suit property. It is a well settled position that the entire burden lies on the person, who pleads oral partition claiming right in respect of the suit property, to prove the same. Though the first defendant has admitted the partition as per the custom, he has not admitted the oral partition as alleged by the plaintiff. He in fact only stated that the northern portion will normally allotted to the younger brother and southern portion will always be allotted to the elder brother. 17. Be that as it may, much emphasis has been made by the plaintiff in respect of the documents under Ex.A1, Othi deed, Ex.A2, Sale deed, Ex.A3, Discharge deed, Ex.A4, Sale deed and Ex.A5, Mortgage deed from the year 1955 executed by Joseph Nadar. Perusal of these documents makes it very clear that from the year 1955, the brother of the first defendant dealt the property by mortgaging the same to several persons and redeeming it. Perusal of these documents makes it very clear that from the year 1955, the brother of the first defendant dealt the property by mortgaging the same to several persons and redeeming it. Under Ex.A5, dated 24.08.1966, the property has been sold in favour of one Aruldosan, who is none other than the brother of the plaintiff and again under Ex.A21 dated 11.12.1972, Joseph Nadar repurchased the same. The said documents clearly show the manner in which the mortgage and sale deeds have been executed and repurchase of the same. It also shows that the above documents are as a result of loan transaction. 18. From the evidence, it could be seen that the first defendant was working as a Teacher in a different place and the suit property was all along in possession and enjoyment of his brother, Joseph Nadar, who dealt the same for loan transaction under various documents. Therefore, this Court is of the view that merely because one of the co-owner executed mortgage and reconveyance deeds for the purpose of obtaining loan, it cannot be stated that the property was absolutely allotted to him. The plaintiff has come to the Court with a specific stand of oral partition dated 24.05.1951, but the same has not been proved. Ex.B2, patta issued in the year 1985, makes it very clear that it is a joint patta and the names of the plaintiff and the defendants are very much found in that patta. Though the plaintiff's brother claims to have purchased the property in the year 1966 under Ex.A5 and electricity connection was also obtained in his name, it is to be noted that the property was repurchased by Joseph Nadar and mortgaged to one Aruldosan, who paid tax in his name in the year 1980. Exs.A11 and A12 indicated that even the said Aruldasan has no right over the property. 19. Be that as it may, it is the main contention of the second and third defendants that the northern portion of the land is the vacant land and they are in possession of the same. Though the plaintiff claims to have possession of the entire property and the defendants trespassed into the suit property in the year 1990, the said contention cannot be countenanced for the simple reason that the plaintiff himself had admitted that the second defendant was in possession during the year 1983 and 1984. Though the plaintiff claims to have possession of the entire property and the defendants trespassed into the suit property in the year 1990, the said contention cannot be countenanced for the simple reason that the plaintiff himself had admitted that the second defendant was in possession during the year 1983 and 1984. Hence, the fact with regard to the alleged trespass in the year 1990 as pleaded by the plaintiff is found to be false. Further, cross examination of the plaintiff makes it very clear that in the southern portion of the property, there are two shops and northern portion of the suit property is only a vacant land and he does not know the door number of the said shops and he had never visited the shop at any point of time. Electricity connection was also disconnected in respect of the southern portion and he had never taken any steps to restore the same. The evidence of P.W.2, makes it very clear that though the electricity connection was obtained only by Aruldosan in the year 1968, the said connection was disconnected. These facts make it very clear that the plaintiff was not aware of the nature of the property and the shops therein. 20. Though it is contended by the plaintiff that he has withdrawn the earlier suit filed by him for bare injunction in O.S.No.278 of 1990 and has filed the present suit, the liberty granted by the Court was not established by the plaintiff. Further, the plaintiff has not filed the plaint of his earlier suit. Whereas, the first defendant denied the stand in the earlier suit that northern portion of the property was allotted to him and he was in possession of the same. The first defendant has also filed a suit in O.S.No. 532 of 1990 restraining the plaintiff from getting electricity service connection. The plaintiff has not filed the earlier pleadings in O.S.No.278 of 1990, only the counter affidavit filed by the second and third respondents has been filed under Ex.A16. 21. Be that as it may, the evidence of plaintiff itself indicates that the second defendant was in possession of the property during the year 1983 and 1984, whereas he took a stand in the present suit that only in the year 1990, the defendants have trespassed into the suit property. 21. Be that as it may, the evidence of plaintiff itself indicates that the second defendant was in possession of the property during the year 1983 and 1984, whereas he took a stand in the present suit that only in the year 1990, the defendants have trespassed into the suit property. That itself cannot be countenanced in view of his own admission in his evidence. Another contention of the learned counsel for the plaintiff is that since the document under Ex.A1 is of the year 1955 and other Othi and reconveyance deeds are more than 30 years old, genuineness of the said documents has to be presumed under Section 90 of the Indian Evidence Act. No doubt, if the document is proved to be 30 years old and produced from a proper custody, the court may presume that the signature and every other part of the document which purports to be in the hand writing of any particular person is in that person’s hand writing. Execution and attestation can also be presumed. All the contents cannot be presumed to be genuine and it has to be proved independently. 22. The Registered documents produced by the plaintiff prove that one of the co-owner has dealt the property for various loan transaction and the manner, in which several documents have been executed, makes it very clear that the Jospeh Nadar, brother of the first defendant has dealt the property for loan transaction. When one of the co-owner dealt the property for his loan purpose, that itself cannot be a ground to presume the oral partition. The first defendant was a Teacher by profession and he was away from the suit property. Therefore, merely on the basis of some loan transactions said to have been done prior to the purchase of the property, oral partition cannot be presumed. 23. In the judgment relied upon by the learned counsel for the appellant in the case of Rangaswami vs. T.V. Krishnan and others [ 2010 (5) CTC 874 ], it has been held that presumption under Section 90 of the Indian Evidence Act can be drawn only in respect of execution and signature of the person or its executent. 24. Ex.B2, patta also stands in the name of the plaintiff and the defendants. 24. Ex.B2, patta also stands in the name of the plaintiff and the defendants. Exs.B3 and B11 show that both the brothers have dealt the property respectively and there was no reason or evidence as to why the suit property alone was allotted to the brother of the first defendant. When one of the co-owner is in possession of the property and dealing the property, it has to be construed that his possession is always on behalf of the other co-owner also. Merely because, one of the co-owner dealt the property for loan transaction and executed several documents, oral partition and allotment of entire property in his favour cannot be presumed. If really the property was allotted to Joseph Nadar, there was no reason for him to get reconveyance frequently. That itself clearly indicates that the property was all along treated as joint family property. The plaintiff's evidence also makes it very clear that the northern portion is a vacant land and he does not even know the door number of the shop in the property. Total extent of property is 2 1/4 cents and if really the plaintiff is in enjoyment as per the sale deed, his normal conduct would be to give minute details about the property, but the plaintiff is not even able to describe the property in his evidence properly. 25. That apart, the pleading of the plaintiff that the defendants have allegedly trespassed into the property only in the year 1990 was also falsified by his own admission. All these facts clearly show that the oral partition as alleged by the plaintiff has not been established. The plaintiff, being a stranger to the family, has not discharged the burden to prove the oral partition between the plaintiff's vendor and the first defendant. Admittedly, the second defendant is in possession of the property as could be seen from the documents under Ex.A10 and A11, tax receipts, filed by the defendants in the year 1980 even before the filing of the earlier suit said to have been filed in O.S.No.278 of 1990. D.W.2 also spoke in his evidence that he is a tenant under P.W.1. All these facts clearly show that the oral partition as alleged by the plaintiff has not taken place and the same has not been properly established by the plaintiff. D.W.2 also spoke in his evidence that he is a tenant under P.W.1. All these facts clearly show that the oral partition as alleged by the plaintiff has not taken place and the same has not been properly established by the plaintiff. Though he claims title to the entire property, as the oral partition has not been established in respect of the suit property between the plaintiff's vendor and his own brother, the relief sought for by the plaintiff cannot be granted in this regard. 26. Section 47 of the Transfer of Property Act defines that where several co-owners of immovable property transfer a share therein without specifying that the transfer is to take effect on any particular share or shares of the transferors, the transfer, as among such transferors, takes effect on such shares equally where the shares were equal, and, where they were unequal, proportionately to the extent of such shares. 27. Admittedly, in the absence of oral partition being established, the plaintiff's vendor and the first defendant have equal shares in the property. Therefore, even though transfer is made in respect of the entire property by one of the co-owner, the title passes only in respect of his share of the property and the said transfer will not bind the first defendant share. Therefore, at the most, the plaintiff is entitled to a half share in the property. Since the plaintiff has failed to establish or demonstrate the oral partition as pleaded in the plaint, certainly he is not entitled for declaration and recovery of possession in respect of the entire property. The only remedy available for the plaintiff is to seek partition and separate possession in the 'A' schedule property. Accordingly, the questions are answered. 28. In the result, this second appeal is allowed the judgment of the first appellate Court is set aside and the decree and judgment of the trial Court is hereby confirmed. No costs.